Monitoring First Amendment and open government issues across the state.

Thursday, July 21, 2011

Louisville school-bus fight tape is open record

Attorney General Jack Conway has ruled that a videotape of an assault on a Jefferson County Public Schools bus driver by a parent is a public record and should be released to Louisville television station WLKY.

An opinion issued July 11, written by Assistant Attorney General Amye Bensenhaver, held that the school system violated the state's Open Records Act by refusing to make the tape available. The district declined the station's request, declaring the tape was protected by the Family Educational Rights and Privacy Act. The videotape, the school district argued, is an educational record and is therefore confidential under the federal law.

But the opinion held that the videotape focused on the action of the adults involved rather than the students. The school system should blur the identities of any students visible in the tape and release it to the television station, said the opinion, which has the force of law unless overturned by a court. The school system has 30 days to appeal. Lauren Roberts, a spokeswoman for the school system, said no decision has been reached on an appeal.UPDATE, Aug. 9: The system released the tape, in which the identities of the students were obscured, and the station did a story and posted the opinion.

The opinion said, "Because the conduct at issue in the disputed videotape does not focus on students, or student activities, we do not believe the videotape can be withheld in its entirety as an 'education record.' Instead, we find that it is a public record in which there is a strongly substantiated public interest predicated on the public’s ‘right to know’ . . . whether public servants are indeed serving the public . . . .” The opinion held that the privacy interest of the students "does not override the public’s right to know that its agencies and their employees are 'properly execut[ing] their statutory functions,' in this case, insuring the safety and protection of the students who have been entrusted with their care."

But the attorney general's office also stipulated that the opinion applies only to this particular situation and is not a precedent that applies to all school videotapes.

According to the website of WLKY-TV, on March 1, Chesica White boarded a bus ridden by her 7-year-old son intent on finding out who was bullying him. White and her 12-year-old daughter argued with bus driver Johnetta Anderson. The argument escalated and White dragged the driver off of the bus. Anderson suffered a torn ligament. White was charged with 20 felonies and two misdemeanors. She entered an Alford plea, meaning she didn't admit guilt but acknowledged a jury likely would find her guilty of two assault charges.

The station filed an open-records request seeking reports of bullying on the bus on which the March 1 altercation occurred. The documents the station received outlined 150 such reports since the start of the school year. Of that number, 51 were filed in the two weeks leading up to the March 1 incident. For the station's story, click here.